RULING ON REDACTION

INTRODUCTION

This Ruling pertains to the issue of disclosure of documents obtained by the Commission to Parties with standing before this Commission. Before dealing with the heart of the matter, it is important to provide the necessary background to better understand the issues at hand.

Pursuant to section 7 of the Public Inquiries Act, and under Rule 31 of the Commission’s Rules of Practice and Procedure, Parties with standing before this Commission were summonsed and expected to produce all records arguably relevant to the mandate of the Cornwall Public Inquiry. This involved casting a wide net, even including documents in relation to which privilege may be claimed under the laws of evidence.

In due course the Parties produced tens of thousands of documents, and continue to do so in response to specific requests from Commission counsel. 

The bulk of the records from Parties have been received by Commission counsel in original unedited form, as per the requirements of Rule 31. Two Parties before this Commission took issue with Commission counsel reviewing a small set of documents on the basis of claims of solicitor/client privilege. This will be argued before the Divisional Court on September 21, 2006. 

Apart from that small subset of documents, all documents produced by Parties will be reviewed by Commission counsel in unedited form. This allows Commission counsel to have an unrestricted view of all the documents that may have a bearing on the conduct of this Inquiry.

The next stage is the disclosure of documents to the Parties with standing before the Commission. Of paramount importance is the purpose of that disclosure and the very limited use that can be made of it.

In my Ruling on Standing and Funding issued on November 17, 2005, I determined that those who have been granted full standing before the Commission are entitled, as a matter of fairness, to a number of rights, including access to the relevant documents obtained by the Commission, subject to the Rules of the Commission.

The Parties with standing represent a broad spectrum of society. Not only are public institutions represented, but so are community interest groups, alleged victims and formerly accused individuals. 

These Parties have been involved in relevant events or have lived in this community during the period of time when relevant events occurred. They are in a unique position to provide me with different perspectives. For them to be able to do so, and to ensure the effectiveness of this Inquiry, it is essential to provide the Parties access to relevant documents in the possession of the Commission in advance of the evidentiary hearings.

This is consistent with the process followed by other public inquiries in Canada.

As a result of the volume of documents generated, a decision was made by the Commission to have these documents loaded on to an electronic database, which allowed Commission staff to organize, search and review the documents; the system also allowed orderly advance disclosure to Parties. 

Disclosure to Parties does not mean that the documents will necessarily be tendered as evidence before the Commission, or otherwise made public. The documents are disclosed to the Parties under very strict conditions. The disclosure of documents is provided to counsel for Parties only upon the signature of an Undertaking providing that the documents are strictly confidential and are not to be disclosed or shown to anyone or made public, except as provided in the Undertaking. Counsel are allowed to show the documents to their clients on a need to know basis, and upon the condition that their clients also sign written Undertakings.

On August 10, 2006, I issued an Order directing that Counsel and Parties requiring access to Commission documents must sign the Undertakings and abide by specific conditions for disclosure.

The breach of the terms of the Undertakings by Counsel or their clients may lead to serious consequences, such as the limitation or loss of standing or funding, and the initiation of contempt proceedings, which may eventually result in imprisonment.

Commission counsel, who adduce the evidence, will control the use of documents before the Commission. If Parties wish to use documents received pursuant to the advance disclosure, they must notify Commission counsel in advance. This means that not all documents disclosed in advance to Parties will be used in evidence. This also means that prior to their introduction into evidence, Commission counsel and Parties will have the opportunity to ask that specific sensitive information be protected from public disclosure, either through editing, the application of confidentiality measures or limitations on publication. 

The disclosure to Parties therefore does not equate to the release of information to the public. The disclosure is a means to provide the Parties with access to the relevant documents in the hands of the Commission in order to adequately prepare for the hearings and assist the Commission in the fulfillment of its mandate.

Nonetheless, as the disclosure process was taking place, a number of concerns over privacy and confidentiality were raised by a number of Parties, which warranted argument before me on June 27, 2006 over the type of disclosure that would be made to Parties. 

Some Parties, including the Ontario Provincial Police, the Cornwall Community Police Service and the Children’s Aid Society were of the view that disclosure of documents to Parties should not take place without significant editing. The Attorney General was of the view that its documents could be disclosed in unedited form, on the understanding that any discussion with respect to admissibility and editing would take place at the time of their introduction into evidence. The Ministry of Community Safety and Correctional Services has now also adopted this position. 

I issued directions on the same day to permit quick access to relevant Commission documents to Parties with appropriate editing to be applied prior to disclosure to satisfy Parties’ concerns. 

Those directives seem rather simple, but given that the documentation includes hundreds of thousands of pages, the task requested of the Parties was massive. 

Mindful that the Inquiry must proceed expeditiously, I requested that the Parties make their best efforts to complete their editing within two months. I would be remiss in not acknowledging the sustained and conscientious work of those Parties who produced documents requiring the greatest amount of editing namely, the Ontario Provincial Police, the Cornwall Community Police Service, the Children’s Aid Society and the Ministry of Community Safety & Correctional Services. 

With the cooperation of all Parties, Commission staff worked diligently throughout the summer and delivered the first hard drive of disclosure to Parties containing approximately half of the disclosure. 

Once the hard drives were delivered and the documents reviewed by Parties with standing, certain issues arose which warranted that we revisit the matter of editing of certain information as it pertained to balancing the interest of full disclosure with the need to protect those involved peripherally with the Inquiry or those who may be retraumatized. The Parties, in an attempt to focus on certain of these concerns, have drawn up a list of ten issues for my consideration. 

I note that since the beginning of this Inquiry, I have been and remain very much concerned about the issues involved in the disclosure of sensitive information. I have considered this matter anew, in the view of balancing concerns relating to the disclosure of sensitive information with fairness requirements towards those affected by this Inquiry.

Before turning to the ten issues which need to be considered, I must say that I am heartened by the fact that the Parties seem genuinely interested in advancing the mandate of this Inquiry, and I am hopeful that we can continue to deal with matters of interest to the Parties as and when they come up.

ANALYSIS

1. INFORMANTS

a) Confidential Police Informants

The Ontario Provincial Police, the Cornwall Community Police Service and the Attorney General are the Parties who are in the best position to claim the application of police informant privilege as they have provided the Commission with the police records relevant to the work of the Commission. They have indicated before me that, to their knowledge, there are no confidential police informants identified in the documentsproduced by them relevant to the subject matter of the Inquiry. 

The concerns expressed by the Ontario Provincial Police and the Cornwall Community Police Service relate to police officer note books, which contain chronologically noted writings and thus may contain information permitting the identification of police informants in investigations unrelated to this Inquiry.

The protection of the identity of the police informants is supported by longstanding authorities and is undisputed. The scope of the privilege may be an issue before this Commission and will be discussed below in point 3 of this Ruling.

I have taken into consideration the information provided by the Ontario Provincial Police, the Cornwall Community Police Service and the Attorney General and any concerns with the application of police informant privilege would be automatically eliminated with my ruling on point 2, which deals with unrelated investigations. Accordingly, I do not need to consider this issue further at this time.

b) Individuals making referrals pursuant to their duty to report suspicion of child maltreatment to the Children’s Aid Society

While apparently akin to police informants, those persons differ in legal status from police informants in two important ways. First, such persons are making referrals to the Children’s Aid Society under a legal duty pursuant to the Child and Family Services Act. Second, there is no legal pronouncement or law recognizing a class privilege under such circumstances.

Such information is important and may be required by the Commission in order to properly assess the response of the Children’s Aid Society to allegations of abuse.

That being said, sound public policy should encourage people to report abuse of children to the Children’s Aid Society. Consequently, any request for confidentiality with respect to the identities of individuals reporting suspicion of maltreatment to the Society should be made, and will be assessed, on a case-by-case basis, if and when such information is tendered as evidence before the Commission.

2. INVESTIGATIONS UNRELATED TO THE COMMISSION’S MANDATE

a) Police investigations unrelated to the mandate

b) Children’s Aid Society files relating to matters not within the Commission’s mandate (for example: Children’s Aid Society files regarding child management, child neglect or domestic violence issues)

As indicated earlier, the Summonses to Parties sought the production of all records arguably relevant to the mandate of the Cornwall Public Inquiry. In responding, Parties provided some materials not relevant to the mandate of the Commission.

This issue here really centers on police officers’ notes and some files of the Children’s Aid Society.

With respect to the Children’s Aid Society, I understand that a process has been established whereby files are being vetted on a case-by-case basis with the assistance of counsel for the Children’s Aid Society. Commission counsel are instructed to redact or withhold materials relating to matters not within the Commission’s mandate.

With regard to police officers’ notes, I agree that they should be redacted prior their disclosure to the Parties in order to exclude those investigations unrelated to the mandate of the Commission.

If, during the course of the Inquiry, Parties raise questions with respect to the edited notes, those concerns can be put to Commission counsel, who as I have indicated, have access to the unedited notes. If concerns persist, the matter can be brought forward before me.

c) Names of family members and relatives of alleged victims of child maltreatment

The issue raised by the Children’s Aid Society with respect to 2c) is similar to point 6 and will be discussed below.

3. INFORMATION THAT WOULD IDENTIFY A VICTIM WHO PROVIDED INFORMATION TO THE POLICE ON THE BASIS THAT THE VICTIM’S NAME WOULD NEVER BE DIVULGED

This item has given the Ontario Provincial Police, the Cornwall Community Police Service and the Ontario Provincial Police Association much concern. As I understand it, those Parties take issue with the disclosure of information to Parties about alleged victims who have provided information to the police, but who did not want their names to be disclosed or investigations to be initiated or pursued. 

The Ontario Provincial Police and the Cornwall Community Police Service argue that to maintain any promise of confidentiality, information allowing the identification of those persons should be edited prior to the disclosure to Parties. 

Counsel for the Ontario Provincial Police Association goes further in inviting the Commission to extend the application of the protection traditionally afforded to police informants to these persons. Counsel quoted R. v. Leipert, [1997] 1 S.C.R. 281 for the proposition that a person providing information to the police about a crime involving themselves as the victim with the understanding that such information will not be revealed should have the protection of police informant privilege.

The limits of police informant privilege are well known. Not everyone providing information to the police in confidence will be considered a confidential informant. As stated by Trafford J. in R. v. Brown. [1999] O.J. No. 4870 (S.C.J.):

“Not everyone who gives information to the police is a confidential informant. It is one thing to be an informant – it is another thing to be a confidential informant. To be a confidential informant an informant must request the privilege, expressly or by necessary implication, and receive an assurances (sic) of confidentiality, expressly or by necessary implication, from the officer. Regard must be had for all of the circumstances of the case. A would be confidential informant does not begin with a right of confidentiality but does have a right to silence. One need not give information to the police. But, if the privilege attaches to the relationship, a right of confidentiality in the confidential informant is created and must be recognized by everyone”

The mandate of this Inquiry includes looking into the response of police services to allegations of sexual abuse of children. The fact that institutions submitted that victims claimed confidentiality must be examined to determine if in fact, and under what circumstances such claims were requested and what promises of confidentiality were made. As well, we need to determine to what extent those procedures followed established protocols, if any, and if indeed such promises were warranted. 

I will therefore order that the Ontario Provincial Police and the Cornwall Community Police Service identify those persons whose identity they claim should be protected. As well, they are to point out in the disclosure those portions of evidence they believe would justify the claim that these individuals are confidential complainants and thus may be entitled to the claim of privilege. Once these materials have been isolated, they will be reviewed by Commission counsel pursuant to our Rules. 

4. COVERT POLICE INVESTIGATIVE TECHNIQUES, POLICE PROCEDURES, AND ANY INFORMATION THAT COULD JEOPARDIZE OFFICERS’ SAFETY 

I agree that these items should be redacted as they are integral to effective police investigation and, most importantly, to police safety. This is subject to revisiting any matter on a case-by-case basis if and when the issue arises. 

5. JUVENILE DELINQUENTS ACT AND YOUNG OFFENDERS ACT RECORDS

This matter deals with the privacy afforded to young persons whose identities as young persons dealt with under the Juvenile Delinquents Act or the Young Offenders Act are protected under relevant legislation. By order of Justice Marin of the Youth Justice Court, dated July 25, 2006, permission to release documents containing such information for disclosure purposes was obtained. Counsel raised concerns as to the extent to which the order may be used other than at the disclosure stage and the extent to which such documents can be used at the evidentiary stage. I will consider those concerns if and when they arise at the appropriate time.

6. VICTIMS’ NAMES AND RELATED INFORMATION AND, NAMES OF INDIVIDUALS ASSOCIATED TO VICTIMS AND RELATED INFORMATION THAT COULD RESULT IN THE IDENTIFICATION OF VICTIMS 

7. WITNESS NAMES AND RELATED INFORMATION THAT COULD RESULT IN THE IDENTIFICATION OF THE WITNESS

8. NAMES OF SUSPECTS (DEAD OR ALIVE) INVESTIGATED BUT NEVER CHARGED

9. PERSONS OF INTEREST (DEAD OR ALIVE) NAMED BUT NEVER INVESTIGATED

These four items can be dealt with as follows. All four categories of persons, be they victims, witnesses, suspects or persons of interest, should be treated with respect and decency. Documents containing such information shall be released to the Parties in unredacted form, however, Counsel for the Parties and their clients are prohibited, under any circumstances, from communicating, with those persons. Should any issue arise as a result of this disclosure, the concerned Parties shall bring the matter to the attention of Commission counsel forthwith.

10. PERSONS ACQUITTED, CHARGES STAYED, CHARGES WITHDRAWN

It was agreed by all parties that these names should be disclosed.

CONCLUSION 

In the circumstances, I hereby order that disclosure will be provided to the Parties with Standing in unredacted form except for police officers’ notes produced by the Ontario Provincial Police and the Cornwall Police Service. Both the Ontario Provincial Police and the Cornwall Police Service will review their police officers’ notes so as to redact only those portions of the notes that fall under sections 1(a), 2(a) and 4 of this Ruling, namely:

- The name of confidential police informants and any information allowing the identification of police informants;

- Any information concerning police investigations unrelated to the Commission’s mandate, and 

- Information concerning covert police investigative techniques, police procedures, and any information that could jeopardize police officers’ safety. 

As well the Ontario Provincial Police and the Cornwall Community Police Service are to provide the Inquiry with the name and details surrounding those complainants whom the police state wished to remain anonymous, subject to further disclosure once these details have been reviewed by Commission counsel or ruled upon and at that point a decision will be made.

I do understand that this is an onerous task. My further understanding is that the police officers’ notes have been flagged and, without for a moment minimizing the work to be done, that this will reduce the number of documents to be reviewed.

Counsel for the Ontario Provincial Police and the Cornwall Police Service shall provide Commission counsel with the changes and information contained in this Order within two (2) weeks from the issuance of this Ruling. Details on how to accomplish this should be discussed with Commission counsel as soon as possible after this Ruling.

I believe that this exercise has been a productive one. It has served to help all parties focus on these important issues and hopefully inform the public on the need to disclose as much as possible to the parties, all the while ensuring that privacy of individuals is safeguarded.

In the end, it is essential to understand that while certain names will be revealed to the Parties, it is being done for disclosure purposes only, and:

a) that very strict rules have been established to ensure that those names are kept private and not made public;

b) that in the event that some names are considered to be entered in evidence:

i) that no order will be made without affording the parties full opportunity to make submissions, and

ii) that consideration of the use of publication bans and other remedies be used to protect the confidentiality of the individuals in question. 

Dated this 30th day of August, 2006

G. Normand Glaude

Commissioner